During the genocide, lower-level perpetratorsincluding Interahamwe,
soldiers, and otherswere directly responsible for most acts of sexual
violence. The smaller group of leaders of the genocide often exercised command
responsibility in the perpetration of these offenses and directly incited rape.
In addition to being acts of genocide under the Genocide Convention, such
offenses violated other international treaties, notably the International
Covenant on Civil and Political Rights, the Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW), and the Convention on the
Rights of the Child. While some of the high-level perpetrators have come before
the ICTR, the national justice system is responsible for the prosecution of the
majority of offenders. Therefore, most Rwandan victims of genocide sexual violence
who seek accountability must rely on national justice mechanisms. The Rwandan
government is obliged to uphold international standards in this respect. Rwanda is additionally obligated to implement the International Covenant on Economic,
Social and Cultural Rights on behalf of its population. Of particular
importance to rape survivors of the genocide and their families is the right to
the highest obtainable standard of health.

International human rights law requires states to adopt
effective measures for the prevention, investigation, prosecution, and
punishment of sexual violence; to ensure its citizens the highest attainable
standard of health; and to provide reparations to victims of serious human
rights violations. Rwanda has ratified international and regional treaties
containing the above protections.214
The Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), to which Rwanda is a party, obliges states parties to pursue by all
appropriate means and without delay a policy of eliminating discrimination
against women, whether such discrimination is perpetrated by state laws or
institutions, or by state or private actors.215 Specifically,
international human rights law requires states to provide an effective remedy
for human rights abuses216
and renders states responsible for their failure to prevent, investigate,
prosecute, and punish recurrent violations by private actors.217

The CEDAW Committee218 has affirmed that
violence against women constitutes a form of discrimination under CEDAW and
identified key steps that states parties should take to combat the practice:

(a) Effective legal measures, including penal sanctions,
civil remedies and compensatory provisions to protect women against all kinds
of violence, including inter alia violence and abuse in the family, sexual
assault and sexual harassment in the workplace;

(b) Preventive measures, including public information and
education programmes to change attitudes concerning the roles and status of men
and women;

(c) Protective measures, including refuges, counseling,
rehabilitation and support services for women who are the victims of violence
or who are at risk of violence.219

In its Declaration on the Elimination of Violence against
Women, the U.N. General Assembly similarly calls upon states to take decisive
action against gender-based violence.220

Beyond its status as sex-based discrimination under
international human rights law, sexual violence infringes upon sexual rights
and the right to bodily integrity. The International Covenant on Civil and
Political Rights (ICCPR) guarantees the right to bodily integrity through its
protections for liberty and security of person.221
The Committee on Economic, Social, and Cultural Rights222
(ESCR Committee) has recognized the right of a woman to make decisions with
respect to her sexuality under the International Covenant on Economic, Social,
and Cultural Rights (ICESCR).223
Similar protections appear in such documents as the International Conference on
Population and Development (ICPD) Programme of Action 1 and the Beijing
Platform of Action 2.224

International legal protections against sexual violence also
apply to persons under eighteen. States party to the Convention on the Rights
of the Child (CRC) must protect children from all forms of physical or mental
violence, injury or abuse, neglect or negligent treatment, maltreatment or
exploitation including sexual abuse and ensure that victims of such acts
receive legal and psycho-social redress.225 The ICCPR grants every
child the right to such measures of protection as are required by his status
as a minor.226
Under the African Charter on the Rights and Welfare of the Child, states must
take preventive and remedial measures against child abuse and torture,
particularly sexual abuse.227

International human rights law obliges states to provide
reparations to victims of serious human rights violations. The Universal
Declaration of Human Rights provides for a right to remedy for violations of
rights protected by the constitution or by law.228
The ICCPR requires states to provide an effective remedy for violations of
rights and freedoms and to enforce such remedies.229 The U.N. Human Rights Committee, which
authoritatively interprets and monitors adherence to the ICCPR, has affirmed
the state obligation to provide reparations under the ICCPR:

Article 2, paragraph 3, requires that States Parties make
reparation to individuals whose Covenant rights have been violated. Without
[such reparation]. . . the obligation to provide an effective remedy, which is
central to the efficacy of article 2, paragraph 3, is not discharged. . . . The
Committee notes that, where appropriate, reparation can involve restitution,
rehabilitation and measures of satisfaction, such as public apologies, public
memorials, guarantees of non-repetition and changes in relevant laws and
practices, as well as bringing to justice the perpetrators of human rights
violations.230

The draft Basic Principles and Guidelines on the Right to
Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law
(Basic Principles and Guidelines) reaffirms and elaborates on these international
legal obligations.231
Endorsing this draft document, the U.N. Commission on Human Rights has noted
that a state must grant or facilitate reparation in accordance with its duty to
respect and ensure human rights.232
The Basic Principles and Guidelines enumerate the main forms of reparation: (a)
restitution, meaning the restoration of circumstances that existed prior to the
violation; (b) compensation for resulting material losses, as well as physical
and emotional pain and suffering; (c) rehabilitation, meaning legal, medical,
psychological, and other assistance to the victim; and (d) redress and measures
to prevent future violations, through such means as truth-seeking, public
acknowledgment, investigation and prosecution of responsible individuals,
apology, commemorations and memorials dedicated to the victims, and revision of
the historical record.233
The current government of Rwanda, although not responsible for the genocide,
must nonetheless fulfill the human rights law obligations of the predecessor
regime, including providing an effective remedy and reparations to victims of past
violations.234

In the case of the Rwandan genocide, the issue of
reparations relates to both criminal accountability for murder, sexual violence,
and other crimes, and the material needs of the victims, including health care
for rape victims. Compensation for victims of human rights abuse, such as mass
rape, is an important component of legal redress and may contribute to
improving the health and standard of living of the victims. Since 1996, the Tribunals
of First Instance and military courts have ordered persons convicted of genocide
or related crimes to pay damages to the victims, but, due mainly to the
insolvency of the defendants, none of these awards has been executed.235

Since early 2001, government officials have endorsed versions
of a draft law on reparations and made assurances of its imminent adoption, but
have not taken any further action since.236 Articles 32 and 90 of
the 1996 Genocide Law and the 2001 Gacaca Law, respectively, affirmatively
state that a third law will be adopted to create and govern a reparations fund
for genocide victims.237
Both laws include other provisions that presuppose the existence of such a
fund.238
Article 96 of the 2004 Gacaca Law states simply that [o]ther forms of
compensation the victims receive shall be determined by a particular law.239

The August 2002 version of the draft reparations law outlines
a comprehensive reparations policy. Notably, it would grant financial
compensation to genocide victims, with particular attention to health care,
educational expenses, treatment for trauma, and the legal and social problems
of the most needy persons; truth-seeking; proper burial of the relatives of the
victims; and the preservation of the memory of the victims through memorials
and programs.240
Proposed sources of funding for the reparations fund include: a proportion of
the national budget; awards of damages to unidentified victims in the course of
genocide trials; revenue from detainees community work; public taxation; and
voluntary contributions by foreign states, charity organizations, and private persons
or organizations.241

[214] Rwanda has ratified or acceded to the following
instruments: Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW), G.A. Res. 34/180, U.N. Doc. A/34/46, entered into force
September 3, 1981; International Covenant on Civil and Political Rights
(ICCPR), 999 U.N.T.S. 171, entered into force March 23, 1976; International
Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. res. 2200A
(XXI), 21 U.N. GAOR Supp. (no. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S.
3, entered into force January 3, 1976; the Convention on the Rights of the
Child (CRC), G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N.
Doc. A/44/49 (1989), entered into force February 23, 1991; the African (Banjul)
Charter on Human and Peoples Rights (African Charter), adopted June 26, 1981,
OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October
21, 1986; African Charter on the Rights and Welfare of the Child, OAU Doc.
CAB/LEG/24.9 (1990), entered into force Nov. 29, 1999. Rwanda has signed but not ratified the Protocol to the African Charter on Human and Peoples Rights
on the Rights of Women in Africa.

[217] In the 1988 Velásquez Rodriguez case, the
Inter-American Court of Human Rights held that a state must take reasonable
steps to prevent human rights violations and to use the means at its disposal
to carry out a serious investigation of violations committed within its
jurisdiction, to identify those responsible, to impose the appropriate punishment
and to ensure the victim adequate compensation. Velásquez Rodriguez case,
Judgment of July 29, 1988, Inter-American Court of Human Rights (series C), no.
4, paras. 174.

[218] The Committee on the Elimination of Violence against Women
(CEDAW Committee) authoritatively interprets and monitors state
compliance with the Convention on the Elimination of All Forms of
Discrimination against Women.

[220] United Nations General Assembly, Declaration on the
Elimination of Violence against Women, A/RES/48/104, December 20, 1993 (issued on February 23, 1994).

[221] ICCPR, art. 9. The CEDAW Committees General
Recommendation 19 on gender-based violence invokes the right to liberty and
security of person. CEDAW Committee, General Recommendation 19, para. 7.

[222] The
Committee on Economic, Social, and Cultural Rights authoritatively interprets
and monitors state compliance with the International Covenant on Economic,
Social, and Cultural Rights.

[223] Committee on Economic, Social and Cultural Rights
(ESCR Committee), General Comment 14, The right to the highest attainable
standard of health, U.N. Doc. E/C.12/2000/4 (2000), para. 8.

[224] United Nations, Programme of Action of the United
Nations International Conference on Population and Development (New York:
United Nations Publications, 1994), A/CONF.171/13, October 18, 1994; United Nations, Beijing Declaration and Platform for Action (New York:
United Nations Publications, 1995), U.N. Doc. A/CONF.177/20, October 17, 1995, para. 96.

[230] U.N.
Human Rights Committee, General Comment No. 31 on Article 2 of the Covenant:
The Nature of the General Legal Obligation Imposed on States Parties to the
Covenant, U.N. Doc. CCPR/C/74/CRP.4/Rev.6 (2004), para. 16. Likewise, the
ICESCR General Comment on the Right to Highest Obtainable Standard of Health
provides similar language concerning remedies and reparations:

Any person or group victim of
a violation of the right to health should have access to effective judicial or
other appropriate remedies at both national and international levels All
victims of such violations should be entitled to adequate reparation, which may
take the form of restitution, compensation, satisfaction or guarantees of
non-repetition.

ESCR Committee, General
Comment 14, paras. 29-30.

[231] M. Cherif Bassiouni, Basic Principles and
Guidelines on the Right to a Remedy and Reparation for Victims of Violations of
International Human Rights and Humanitarian Law [Basic Principles and
Guidelines], (Fifty-sixth Session), U.N. Doc. E/CN.4/2000/62, January 18,
2000, annex, preamble. Excerpts of the draft appear in Appendix I of this
report.

[232]See U.N. Commission on Human Rights, The
Right to Restitution, Compensation and Rehabilitation for Victims of Grave
Violations of Human Rights and Fundamental Freedoms, Res. 2002/44, (51st
meeting), April 23, 2002; U.N. Commission on Human Rights, The Right to
Restitution, Compensation and Rehabilitation for Victims of Grave Violations of
Human Rights and Fundamental Freedoms, Res. 2003/34, (57th
meeting), April 23, 2003.

[234] The
Human Rights Committee, which authoritatively interprets the ICCPR, has
affirmed the continuity of legal obligations when there is a change of
government:

The rights enshrined in the
Covenant belong to the people living in the territory of the State party. The
Human Rights Committee has consistently taken the view, as evidenced by its
long-standing practice, that once the people are accorded the protection of the
rights under the Covenant, such protection devolves with territory and
continues to belong to them, notwithstanding change in government of the State
party, including dismemberment in more than one State or State succession or
any subsequent action of the State party designed to divest them of the rights
guaranteed by the Covenant.

Damages awarded to victims who have not yet been identified shall be
deposited in a Victims Compensation Fund, whose creation and operations shall
be determined by a separate law.

Prior to the adoption of the law creating the Fund, damages awarded shall
be deposited in account at the National Bank of Rwanda opened for this purpose
by the Minister responsible for Social Affairs and the fund shall be used only
after the adoption of the law.